19 October, 2018

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A Critical Analysis Of The Draft Constitution Doc By 6 Members Of The Panel Of Experts 

By Ruwan Laknath Jayakody –

Ruwan Jayakody

Certain Members of the Panel of Experts (six out of 10) have presented a confidential, for discussion purposes only, document, for the consideration of and discussion by the Steering Committee of the Constitutional Assembly, a document which seeks to facilitate the formulation of a Draft Constitution Bill by the Steering Committee.

The Panel of Experts consists of persons nominated and appointed by the political parties represented in the Parliament. 

In critically analyzing it, one finds that the application of any approach taken under the various rules of statutory construction or interpretation would not absolve the travesty that is the attempt at Constitutional reforms made by the Six Members of the so called Panel of Experts, who are political appointments, as exemplified in their simple minded and misguided stab at amending the Constitution to suit certain aspirations. Nowhere is this legally unsound, utterly unpragmatic and blatantly obnoxious in terms of the reckless (or perhaps even willful) disregard of national realities more evident than in the case of their attempted undoing of the pivotal provisions of Articles 1 to 5 found in Chapter I of the Constitution which deals with nothing short of the ‘The People, The State and Sovereignty’. It seems that the monkeys have got the razorblades and therefore if by some stroke of woe, lunacy prevails, and the wordings put forward by the Six Members of the said Panel in their reformulations (proposed as Articles 1 to 4 in their document) which are consistent with that of a delusional pipe dream, are adopted, it would precipitate the eventual undoing of this nation. In short it constitutes not Constitutional reforms with qualitative improvements or value additions but a Constitutional perversion.     

The Constitution

Chapter I of the Constitution in Articles 1 and 2 deals with the nature of the State while Articles 3 and 4 concern the social contract and the vesting of sovereignty in the various administrative arms of the State, specifically the legislature/the Parliament, the Executive (the President) and the judiciary, and Article 5 defines the territory of the country.

Constitutional Maledictions 

The State and its Nature

The nature of the State is, in the present Constitution, held to be one that is a Free, Sovereign, Independent and Democratic Socialist Republic that is also Unitary. 

On the other hand, the particular Experts Panel formulation retains the references to a Free, Sovereign and Independent Republic, omits the mention of ‘Democratic Socialist’, and explains that the State “is an aekiya rajyaya/orumiththa nadu (defined in the formulation as being “undivided and indivisible”), consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution”. The new formulation retains that the power to amend or repeal or replace the Constitution is with the legislature and the people as per the manner provided in the Constitution. 

Firstly, the references to democracy and socialism are vital are they relate to aspects pertaining to the civil, political, economic, social and cultural life of the people in the country, not to mention the cherished value systems (including the existence of aspects pertaining to a welfare State) under which life is lived. It serves as a constant reminder on how we should treat each other, including the rules and regulations governing the relations between the Government and the body politic. Thus any omission is unthinkable, not to mention unnecessary. 

Also, the references to “the institutions of the Centre and of the Provinces” in the new formulation in reality concern aspects pertaining to the administrative apparatuses of the State, and should therefore not be construed as constituting the nature of the State and thereby conflated with such. It is a formulation that should appropriately be brought within the domain of the Article that deals with the ‘territory’ and not one that deals with the ‘nature of the State’. 

Furthermore, the case of ‘unitary’ being changed to ‘undivided and indivisible’ is a wholly unwarranted aberration, which also beggars the question as to whether the aforementioned Six have an ulterior agenda albeit even insidiously sinister motive beyond their perceived clever adjective riddled phraseology or word play. Despite the caveat against separatism or secession in Article 4 as proposed in the new formulation, it is no small wonder that the grim spectre of a federalism bordering on separatism as pointed out by other critics, looms, writ large in this particular word manifestation. The aforementioned caveat in this precarious context is tantamount to a case of volunteering innocence when the question of guilt was not raised. 

Something is certainly rotten in the State as proposed in Article 1 of the new formulation which reeks of a form of political-geographical-topographical neoliberalism. 

Sovereignty 

Sovereignty as articulated in Article 3 of the present Constitution and Article 2 of the new formulation, are both the same in that it is vested in the people and is inalienable, and that it includes the powers of the Government, fundamental rights and the franchise.

The exercise of the sovereignty is expanded upon in Article 4 of the existing Constitution where the legislative power is exercised by representatives elected to the Parliament by the people, the Executive power which includes defending the country is exercised by a President elected by the people, and the people’s judicial power is exercised via the Parliament through lawfully established judicial mechanisms and systems. In the same Article, it is specified that the fundamental rights are to be respected, secured and advanced by all organs of the Government and that they cannot be abridged, restricted or denied except by way of a Constitutionally provided manner. The franchise for those above 18 who are qualified to be electors and whose names are in the voter registry is provided for in the same Article. 

However, the new formulation’s Article 3 deals solely with the exercise of the powers of the Government under which the legislative, Executive and judicial powers of the people are to be exercised as stated in the Constitution which the architects of the new formulation claim is the “Supreme Law” of the land. The question is whether this establishes Constitutional supremacy. It does not. In order for Constitutional supremacy to prevail over Parliamentary supremacy, the power of post-enactment judicial review of laws must be afforded to the foremost interpreter of the text that is the Constitution, the Supreme Court. In the absence of such, all that remains is Governmental supremacy as has been proposed as opposed to Parliamentary supremacy, which is even worse. The references to the fundamental rights and the universal suffrage have also been excised from the new formulation. Need more be said.       

Territory 

On the subject of administration, Article 5 of the existing Constitution holds that aside to the territorial waters, the country’s territory consists of 25 administrative Districts and that the Parliament by way of a “resolution” may if it so determines, subdivide or amalgamate the said “administrative Districts” “to constitute different administrative Districts”. 

Note that the basic unit of territorial demarcation is the District and not the Province. One salient reason for the fact is that the third tier of governance, the Local Government authorities (bodies which include the Municipal Councils, the Urban Councils and the Pradeshiya Sabhas) operate within the District and Divisional levels, being the closest to the body politic, in terms of providing vital services which tend to the practical aspects of day to day activities at the grassroots and ground level. There is also a question of the distribution of funding and resources from the Provincial Councils to where it really matters (the Local Government institutions) instead of having them be unutilized or misappropriated or mired in bureaucratic red tape and political wrangling as has been seen on many occasions in the past. 

The other essential aspect is that Article 5 of the current Constitution holds that the Parliament prior to subdividing or amalgamating any administrative Districts, has to arrive at a determination in the form of a resolution to do so. Although by a Parliamentary resolution, the entire Parliament has been made a Constitutional Assembly in early 2015, the making of that determination concerning subdividing or amalgamating any administrative Districts, cannot be arrogated to the Steering Committee of the Constitutional Assembly, which is the central body of the Constitutional Assembly, let alone to an ad-hoc Panel of Experts. No such determination in the form of a resolution has been made by the incumbent Eighth Parliament.   

Regarding the country’s territory, the new formulation of Article 4, is constituted of its geographical territory, including the Provinces, and elsewhere the territorial waters and airspace, and any additional territory acquired in the future. It is further added that while Sri Lanka will have all rights recognized by law, custom and usage in relation to its territory, “No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka.” 

The latter caveat takes from the existing one albeit in a much abridged sense, where according to the Seventh Schedule of the current Constitution, under Article 157A(1) regarding the prohibition against the violation of the country’s territorial integrity and Article 161(d)(iv), the citizen taking the oath cannot, “directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the (country’s) territory.”

Constitutional Solutions 

The answers as reiterated previously by the author lies firstly in the devolution of power by way of the implementation of the 13th Amendment to the Constitution (although the circumstances under which the contentious Amendment became part of the supreme law of the land were hardly ideal) upon a re-evaluation and revaluation of the subjects coming strictly under the purview of the Central and Provincial lists and the abolition of the Concurrent list, and perhaps even considering empowering the Provincial Chief Minister to be on par with the powers afforded to the Provincial Governor (to provide for a Constitutional gridlock) and other structural and systemic reforms as required for the purpose of effectiveness and efficiency in the context of fulfilling the duties and responsibilities of the Councils. All of these above named elements combined would suffice to afford more than an adequate measure of autonomy to the Provinces (the second tier of governance) in terms of governance. At no point should this be construed as a carte blanche for self rule, as autonomy in governance has oft sought to be misrepresented by certain persons who rhetorically and otherwise demand for autonomy in governance. Moreover, any deviation from the normative nature of a unitary State, towards an “aekiya rajyaya/orumiththa nadu – undivided and indivisible” one, (the chicanery of autonyms masquerading as synonyms), would only serve to weaken the Centre/Central Government, which is the most essential component in guaranteeing the aforementioned devolution that is being much sought after, however to the satisfaction of the national aspirations of the citizenry and in the best interests of all peoples of the nation of Sri Lanka. 

The existing Constitution is anything but perfect and among other required changes, the repeal of Article 16(1) which provides for the existence of discriminatory personal laws, the removal of the one month time bar imposed on filing suit before the Supreme Court in the case of fundamental rights applications, and the removal of immunity from suit afforded to the President in his private capacity, for starters, are but only a few aspects from among a vast majority of changes that require a Constitutional remedy. What is not required is the kind of malodorous ‘country be damned’ malady constructed by the dwellers of cloud cuckoo land who are attempting to, by way of tampering with Articles 1 to 5 of the existing Constitution, fix that which isn’t broken, thereby ‘fixing’ the country beyond repair. 

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Latest comments

  • 0
    0

    You should have given the names of those 66 experts presented by different political parties to edit and rewrite the draft constitution. then reader could have decided the implications and objectives of this draft.

  • 1
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 10
    5

    In other countries constitution is prepared taking the aspirations of the majority community while safeguarding the rights of other communities. But in this Paradise Island, the constitution is prepared taking the aspirations of the minority communities ignoring the aspirations of the majority community who have a history of more than 2500 years. While giving due consideration to the rights of minorities, priority should be given to Aadiwasi people who lived in harmony with Sinhala people in Sinhale for thousands of years. But ironically, Aadiwasi people are ignored completely and top priority is given to a community consisting of descendants of invaders, slaves brought to this country by colonial rulers and illegal immigrants.

    • 0
      3

      United States Senate member also said that they wrot ethe constitution for Sri Lanka and not for Sinhale.

    • 4
      1

      “Aadiwasi people are ignored completely and top priority is given to a community consisting of descendants of invaders, slaves brought to this country by colonial rulers and illegal immigrants.”
      Eagle Eye,
      You are right that “Aadiwasi” (assume this is a tamil word) people should be given top priority to those illegal immigrants from India (I am 100% Sure that the current Sinhala community are a mixture of Lion and illegal immigrant Mahinda King Asoka’s son) of India. It is sad that an animal born Indians were given priority compared to the Aadivasi Tamil people.

      • 1
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        Ajith,
        You assume ‘Aadiwasi’ as a Demala word but it is a Sinhala word currently use to refer to ‘Vedda’ people. Aadi=Ancient; Wasi= Lived. Latest archaeological findings confirmed by carbon dating show Sinhale was inhabited by humans for 125,000 years and Sinhala language evolved in Sinhale. Sinhala language has nothing to do with Demala language evolved in Hindusthan.

        • 3
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          Eagle Eye AKA Edwin Rodrigo, please stop distorting truth and misquoting facts. The name Adhiwasi is Sanskrit and not Sinhala or Tamil. It is used in India also. It has been found that Adhiwasis of Tamil Nadu and Sri Lanka (Veddhas) are genetically similar. This corroborates with geological findings that Tamil Nadu and Sri Lanka were a contiguous land mass prior to sea upheaval more than 10,000 years ago, and that these people walked their way from Africa to India and beyond to Papua New Guinea as they were all single land mass known to Tamils as Kumarikandam. It is said that Dravidians (Tamils) moved south from Indus Valley to South India and Sri Lanka following Aryan invasion, and are the first immigrants into these lands. This corroborates with the findings that core genetic material of Sinhalese is South Indian. It has also been found that genetic material of Veddhas are completely different from either Sinhalese or Tamils. Also the stone and iron tools found in and around Kaltota and Balangoda are similar to those found in Africa, corroborating with migration theory of Veddhas from Africa. Therefore with so many counter proofs, to claim that Sinhalese descended from ancient people of Sri Lanka makes them fools. There is no doubt that Sinhala language evolved in Sri Lanka, but prior to that Tamil or proto-Tamil (Elu) has been used for communication in Sri Lanka as evidenced by numerous stone inscriptions unearthed. Sinhala language evolved from Elu, Tamil and Sanskrit and is not an original one, even the script borrowed from Malayalam. Did you hear that a 2700 year old market square has been unearthed around Jaffna fort, which blows into pieces Sinhala racist propaganda about antiquity of Tamils in Sri Lanka, which was once part of Tamil homeland of Kumarikandam.

        • 2
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          Eagle Blind Eye

          आदिवासिन् adj. AdivAsin aboriginal
          आदिवासिन् m. AdivAsin aboriginee
          अधिवासिन् m. adhivAsin settler
          अधिवासिन् m. adhivAsin occupant
          आदिवासिन्-जाति f. AdivAsin-jAti aboriginal tribe
          अधिवासिन् adj. adhivAsin inhabiting
          अधिवासिन् adj. adhivAsin settled in
          अधिवासिन् m. adhivAsin resident
          अधिवासिन् m. adhivAsin dweller
          अधिवासित adj. adhivAsita scented
          अधिवासित adj. adhivAsita perfumed
          अधिवासिता f. adhivAsitA settled residence

          Do you have another name?
          Is it a******e with a capita A?

        • 1
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          Eagle Eye,
          Poor man. The history of Tamil is much more earliar than Sinhala language. This is accepted by every historian including Sinhalese historians. You can cheat Sinhala people but you cannot cheat Truth.

        • 0
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          EE
          Aadiwasi on the contrary is a pure Tamil word that derives from Aadi Yogi aka Shivan i.e. Lord Shiva revered by followers of Sathadana Dharma aka Hindu religion to others not of that fold.
          Even Lord Buddha was of that same origin and there is no dispute about that fact even in the contents of the Mahavamsa you swear by and believe in.
          In that regard,the Sinhala language devoid of many Tamil words will simply be an absurd meaningless guttural incoherence.

  • 3
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    Ruwan thank you for writing this. As you point out clearly the omit ion of the word “Unitary” is ominous of paving the way to a Federation, From the little I understand of Governance and Political Geography a Unitary State has the overarching power over whatever sub units (i.e.Provinces) and the power to those units has to be delegated by the Unitary State, to keep that out is a creepy, snake in the grass move to slip in the potential of Federalism. GL, Wimal I hope are taking note.

    • 2
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      wannihami

      What is the difference between a unitary state and a united state. Why do you think giving absolute power to a corrupted few in the centre (Colombo) is sufficient condition to keep the country moving whereas a devolved power structure is necessary condition in this modern world?

      Well you really believe and practice the art of “Cutting off the nose to spite the face”. Never mind keep it up, stupid is as stupid does.

  • 0
    0

    If ten ‘experts’ are not able to reach consensus, how can the millions of voters?
    Clearly the ‘experts’ are politicians wearing sheep clothing. Some are digging their heels (or hoofs) in.

  • 4
    3

    In Sri Lanka, Demala people live in several pockets. We have Demala people in Yapanaya; Tirikunamale; Madakalapuwa; in the Central part and Kolamba. Then we have Demala speaking Muslim Demalu scattered all over the country. Can these guys who talk about a Federal solution to Demala problem tell us how a Federal system is going to solve the so called Demala problem?

    • 2
      1

      Again this this distortion of truth to deny indigenous Tamils their right to rule their lands of historic habitation. The demand of self rule is by Indigenous Tamils and not by Tamils of recent Indian origin. Therefore to bring them into the equation is simply mischievous. Of the Tamils residing amongst Sinhalese, 90% are Tamils of recent Indian origin, and 90% of indigenous Tamils are still living in their ancestral lands. Once you empower Tamils to look after their lands, with all administrative and trade centres shifted there and facilities to conduct all businesses without having to come to south, Tamils in the south will start moving into their lands as they are guaranteed a first class status with a life of dignity and safety. Malaysia is a good example of federalism working, where Penang is controlled by Chinese despite 90% of Chinese living in other parts of the country. Problem in Sri Lanka is that except a handful of Sinhalese, the rest are not in favour of sharing power of territory with Tamils in a fair and meaningful manner, and will continue to give lame excuses to deny Tamils their right to have their lost sovereignty restored.

    • 1
      1

      Eagle Blind Eye

      “Demala people live in several pockets. “

      In fact descendants of South Indian Kallathonies live through out the island whereas we live in pockets.

      “Can these guys who talk about a Federal solution to Demala problem tell us how a Federal system is going to solve the so called Demala problem?”

      First of all its not your so called Demala problem but a serious Sinhala/Buddhist problem which is being imposed on the rest of the people. In other words you are the problem. Leave the construction of Federal system to the experts. You as an idiot and a bigot is not capable of understanding the system leave alone finding a solution.

      Gota needs a few palanquin bearers, go apply.

  • 2
    2

    The article published in CT titled ” A Constitution or a Co-situation” reflects what the author has so well crafted his article. The fact that 6 so called experts are conning 22 million people with the connivance of some in this government is amply evident from this article. Many Sri Lankans seem to be in a slumber and they will start shouting once the horses have fled from the stable and we have the legal foundation to move towards a solution which will only create more problems and even bloodshed down the track. Provincial participation in central decision making will strengthen our democracy, but the joint administration proposed by the fake experts takes away the centrality and the unitary state of our country.

    • 0
      0

      It’s a Con-situation. The politicians will ensure that.

  • 1
    1

    What Lankans have is CON – SITUATION. We have been carrying this long title for years but where is the democrazy??? where is Socialism?????. Elections are staged and party in power misuses all the fund and services for their self gain, never the same level of play, and pretty much it is fixed.In our Socialism the rich (mostly politicians and there side kicks) went on to become filthy rich , so much so they just have to find ways to burn the excess money in car racing and bring puppy in solo flights. Where the poor continues to bleed and not much is left to show, Doctors hold public at ransom, Govt institutes have turned to land marks,Education facilities are doing the bidding for the masters (GMOA/SLMC/law college/medical college) Srilankan airlines is looking at euthanasia and Intelligent brains have left the shores long before. When a constitution can not be implemented it is just a piece of paper good enough for????? What changes are we talking about????

  • 0
    0

    The contents itself explain the motive. Civilians must draft a constitution. Not political appointees. They will draft a constitution to suit their masters. We dont need large no. of representatives to parasitically eat on to the treasury. We need govt. departments managed by professionals and not interfered by politicians. Govt. departments must work with clearly laid down principles and audits, not what is amended periodically to weaken the rights of the people. Citizens should be given priority to engage in employment and remuneration, not the politicians and their cronies. There should be regulated process to manage every sector and not at whims and fancy of a stupid MP.
    I dont think these experts have a will to draft such constitution, other than as stooges who are down to begging from politicians to make a living.

  • 0
    1

    Sankaralingam, There are no indigenous Tamils in this island. Indigenous Tamils are only found in Tamil Nadu, and that is where the historic habitation of Tamils is. It is too dumb to argue for a second homeland for the Tamils in this island or anywhere else. Tamils have occupied the north and east of this island, by violently invading and occupying these parts of the Sinhalese island, and ethnic cleansing the Sinhalese from these areas. Tamils have absolutely no historical right to this land.

    • 0
      0

      Punchi Point, punchi brain!
      Idiotic display of absolute Ignorance.
      Not worthy of comment.

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